T ESSESWAR RAO PATRA Vs. RUSAVA MOHANTY

JUDGEMENT

(1.) Heard learned counsel for both the parties.

(2.) The 2nd party member in Misc. Case No. 55 of 1996 u/S. 145, Cr. P.C. of the Court of Executive Magistrate, Phulbani has preferred this revision challenging the order dated 31-3-1997 passed by that Court. As it reveals from the certified copy of the impugned judgment and the contention advanced by the parties that the proceeding was initiated u/S. 144, Cr. P.C. and thereafter on the prayer of both the parties the same was converted to a proceeding u/S. 145. The disputed case land comprises of an area of HC.O.693 vide plot No. 242/2045 of Khata No. 122/12 in Mouza Dadapaju. The 1st party claimed title and possession of that land stating that it is his ancestral property and he is in continuous possession of the same all throughout. The 2nd party advanced the contention of title and possession by stating that one Gunara Konhar (witness for the 2nd party) being an Adivasi was settled with the disputed case land in Lease Case No. 5/83 and he obtained permission from the S.D.O., Kandhamai at Phulbani in 1984 (vide Misc. Case No. 69/84) and transferred the case land in favour of the 2nd party member executing registered sale deeds and that the land has also been mutated in the name of the 2nd party in Mutation Case No. 356/86 and he is paying rent regularly. Both the parties adduced oral evidence and the 2nd party adduced the aforesaid documents in evidence in support of his plea of title and possession. Learned Executive Magistrate found the case of the 2nd party to be doubtful as he entertained doubt about the conduct of the S.D.O. in settling the suit land in favour of Gunara Konhar and thereafter granting permission to him to sell the same to the 2nd party and also the manner in which the Tahsildar, Kandhamal allowed the mutation. Thus learned Executive Magistrate did not accept those documents and so far as the oral evidence was concerned was unable to determine from the same as to which party was in possession of the case land by the date of the preliminary order. Thus, he directed the parties to approach the Civil Court for a decision on the question of title and possession and kept the disputed property under attachment and custody of the receiver until the decision of the civil Court. That order has been challenged in this revision by the 2nd party.

(3.) Learned counsel for the petitioner argues that when the 2nd party has proved his factum of possession through both the oral and documentary evidence the Executive Magistrate was not competent enough to question legality of the order passed by the S.D.O. and the Tahsildar inasmuch as he has no right or authority to interfere with that order. In the absence of any circumstance appearing in the evidence to cast of doubt on the genuineness of the aforesaid orders of the revenue authorities the Executive Magistrate was absolutely wrong in casting aspersion and doubting the conduct of the S.D.O. who is also the S.D.M. and his superior authority. He further argues that the evidence on record are sufficient enough to declare possession of the 2nd party. Accordingly, he argues to set aside the impugned judgment. Learned counsel for the petitioner further states that in a Suo Motu Revision the Addl. District Magistrate, Kandhamal on 23-11-96 has passed order upholding the validity of the order of settlement as per the order of the S.D.O.